II. Comments. General Comments.

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1 COMMENTS BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY REGARDING EPA S PROPOSED RULE ON NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM COOLING WATER INTAKE STRUCTURES AT EXISTING FACILITIES AND PHASE I FACILITIES I. Summary of Proposed Action On April 20, 2011, the Environmental Protection Agency (EPA) published proposed rules that would establish requirements under Section 316(b) of the Clean Water Act (CWA) for all existing power generating facilities and existing manufacturing and industrial facilities that withdraw more than 2 million gallons per day (MGD) of water from waters of the United States (U.S.) and use at least twenty-five (25) percent of the water exclusively for cooling purposes. 76 Fed. Reg 22,174 (April 20, 2011) to be codified at 40 Code of Federal Regulations (CFR) Parts 122 and 125. The proposed rules set out the EPA s response to the remand of the Phase II existing facility rule and the remand of the existing facilities portion of the Phase III rule. The proposed rules would also remove restoration based compliance alternatives and the associated monitoring and demonstration requirements for the Phase I new facility rule. The proposed rules would be implemented through National Pollutant Discharge Elimination System (NPDES) permits and would establish national requirements for the location, design, construction, and capacity of cooling water intake structures (CWIS) in order to minimize adverse environmental impacts (AEI) to aquatic organisms. II. Comments General Comments. 1. Best Technology Available (BTA) for man-made cooling impoundments are excessive - Due to the geology and water availability in the State of Texas, many power generating facilities and CWIS are situated near man-made reservoirs specifically designed and constructed as cooling water impoundments. These impoundments provide fish and wildlife habitat that did not previously exist and are not comparable to natural lakes and reservoirs. The proposed rules do not distinguish between the beneficial man-made cooling water impoundments and natural water bodies and applies excessive protective measures for aquatic species, such as prey fish that are not significantly impacted by the CWIS. In addition to providing cooling water for power generating facilities, these man-made reservoirs provide excellent habitat and water quality for aquatic resources, including sport fisheries. The Texas Commission on Environmental Quality (TCEQ) feels the proposed BTA is excessive for these types of impoundments. The TCEQ requests that the EPA accept the permitting authority s BTA determination based on best professional judgment (BPJ) for these man-made cooling water impoundments. TCEQ Comments on Proposed 40 CFR Parts 122 and 125 Rule Page 1 of 5

2 2. EPA should revise the proposed rules to accept the permitting authority s BTA determination based on BPJ - Significant portions of the proposed rules require the permitting authority determine BTA on a BPJ basis. TCEQ certainly has the experience, qualifications, and expertise necessary to establish BTA on a BPJ basis and has issued the majority of TPDES permits to facilities subject to the current 316b requirements utilizing BPJ. It is TCEQ s experience that EPA Region 6 consistently questions TCEQ s BPJ determinations and objects to draft TPDES permits without clear citations to regulations. The TCEQ requests that EPA establish a policy that accepts the permitting authority s BTA determination based on BPJ without EPA regional staffs objections to draft permits. Specific Comments. 3. The threshold requirement of 2 MGD is too low and would create significant administrative burden and cost for permitting authorities - TCEQ has significant concerns related to the permit application and supporting information requirements in proposed 40 CFR As proposed, EPA has established specific deadlines for submittal of information based on facility specific characteristics and thresholds that are tied to the effective date of the rules (e.g. within one year of the effective date of the rules, etc.). Based on the new applicability threshold proposed by EPA during this rulemaking of intake structures greater than 2 MGD, in place of the vacated threshold of 50 MGD, TCEQ anticipates a significant burden being placed on permitting staff to review this information while continuing to have the necessary resources to run the TPDES program. TCEQ believes EPA has significantly underestimated the administrative costs and other impacts permitting authorities will incur by EPA s applying 316(b) requirements at the reduced threshold of 2 MGD. TCEQ strongly suggests removing the deadlines established in 40 CFR and instead require facilities to submit the information at the time the permit application is submitted. 4. EPA should revise the proposed rules to exempt impingement mortalities caused by natural events such as lake turnovers, stratification and low seasonal ambient temperature - Following years of implementing the current 316b requirements and closely coordinating with permittees, TCEQ has found that natural phenomenon (such as stratification and natural low dissolved oxygen, lake turnovers, low seasonal ambient temperatures) in certain water bodies results in mortality of some aquatic organisms. These natural aquatic mortalities will result in organisms being impinged on intake structure screens and being counted as impingement mortality, violating the proposed impingement mortality percentage limitations in proposed 40 CFR (b). TCEQ requests that EPA revise the proposed rules to allow regulated entities to document naturally occurring aquatic mortalities and exempt the facility from being required to record impingement mortality exceedances caused by natural events. 5. EPA should revise the proposed rules to specify a facility total impingement mortality standard rather than individual species limitations - According to the TCEQ Comments on Proposed 40 CFR Parts 122 and 125 Rule Page 2 of 5

3 preamble, it appears that EPA expects to set impingement mortality limitations on each representative aquatic species, i.e. species of concern. The proposed rule language does not clarify this issue. With the potential for a very small number of certain species being impinged on intake screens, TCEQ suggests that the rules specify a facility total impingement mortality standard, rather than individual species limitations. 6. EPA should revise the proposed rules to eliminate the requirement for peer review from 40 CFR (r)(9)(i) and (b)(2)(i) - TCEQ has significant concerns regarding proposed rules that would require regulated entities to obtain peer review on studies before submitting those studies to the permitting authority, as well as proposed requirements for regulated entities to consult with the permitting authority on the selection of a peer reviewer. As stated elsewhere, the proposed rules would establish a significant burden on TCEQ resources in implementation of these rules. According, TCEQ strongly recommends eliminating peer review requirements established in CFR (r)(9)(i) and (b)(2)(i). Specifically, TCEQ has concerns that consulting on the section of a peer reviewer, TCEQ will impermissibly endorse one peer reviewer over another. Additionally, the proposed rules do not include criteria for the peer review. TCEQ believes that without criteria for peer review, the peer review will not add value to the information submitted to the permitting authority. Additionally, the peer review requirement will establish significant burden on TCEQ resources and therefore strongly requests EPA eliminate the peer review requirement. 7. EPA should revise the proposed rules to allow permitting authorities to establish additional conditions to control entrainment mortality on a case-by-case basis using BPJ from water quality based standards - TCEQ generally agrees that installing technology to control entrainment mortality is site specific and that many facilities would not be capable of installing technologies considered by EPA during this rulemaking. However, TCEQ strongly objects to EPA s BTA standard that would require the permitting authority to establish BTA on a case-by-case basis for entrainment mortality. TCEQ notes that Option 1 (the technology that is the basis for this rulemaking) has the highest administrative costs for permitting authorities to implement when compared to the other three options considered by EPA. TCEQ believes that EPA should find that there is no BTA for entrainment mortality and allow the permitting authority to establish additional conditions to control entrainment mortality on a case by case basis using BPJ from a water quality based standard. 8. EPA should revise the proposed rules to exclude entities that operate a CWIS but do not discharge the cooling water to Waters of the United States - TCEQ is concerned with language and EPA expectations outlined in the rule preamble under Would my facility be covered only if it is a Point Source Discharger? Under this section, EPA has established that entities that operate cooling water intake structures, but do not discharge the cooling water to waters of the United States are still subject to the 316b requirements. TCEQ believes that the NPDES program should not be expanded to entities that are not under federal jurisdiction or are not authorized under a NPDES permit for discharge. EPA explains that such entities are likely subject to NPDES requirements through other programs, TCEQ Comments on Proposed 40 CFR Parts 122 and 125 Rule Page 3 of 5

4 such as the industrial storm water program. Expanding the permitting universe to include these entities, in addition to the new burdens that these proposed rules creates, is excessive. The TCEQ requests that the NPDES program not be expanded to include facilities that are not authorized under a NPDES permit for discharge. 9. EPA should revise the proposed rules to remove, limit or streamline the numbers and types of data, studies, and reports required in the rules - TCEQ believes that the volume of data, studies, reports, and other requirements in the proposed rules are excessive. EPA proposed 11 data, report, and study submittals including: source water physical data, cooling water intake structure data, source water baseline biological characterization data, cooling water system data, impingement mortality reduction plan, performance studies, operational status, entrainment characterization study, comprehensive technical feasibility and cost evaluation study, benefits valuation study, and non-water quality and other environmental impacts study. According to the proposed rules, EPA would require the permitting authority to review and in most instances approve each of the submittals. TCEQ is not aware of any other situation in the NPDES permitting scheme with such excessive resource expectations on the permitting authority. TCEQ strongly suggests EPA eliminate the majority of these required submittals and simplify the rules to establish a more streamlined method to justify BTA. At a minimum, TCEQ has significant concerns related to the level of expertise necessary to review the required information in some of the studies and reports (such as noise, grid reliability, air emissions, social benefits). Therefore, TCEQ requests removing all requirements in the rules related to study and report submittals associated with non-water quality impacts. TCEQ is also concerned that the inconsistency of reviews from state to state and region to region will allow for further inequities. 10. EPA should revise the proposed rules to require entities to meet one of the two established means of demonstrating BTA and remove the additional requirements for impingement monitoring and additional entrainment studies - TCEQ finds the proposed rules confusing and extremely burdensome to both the regulated community and permitting authorities. Since the statute establishes the technology standard as BTA, a different standard than Best Practicable Control Technology Currently Available (BPT), Best Conventional Control Technology (BCT), Best Available Technology Economically Achievable (BAT), or New Source Performance Standards (NSPS), TCEQ feels effluent limitations and associated monitoring and reporting are absolutely unnecessary. EPA has established two means of demonstrating BTA, either intake velocity reduction, or modification of existing traveling screens with fish return systems. TCEQ feels regulated entities that meet either requirement should satisfy BTA and that TPDES permits can be developed that require operation of technologies to meet either requirement without the need for impingement monitoring, effluent limitations, and the need to conduct additional studies for site specific entrainment BTA. Regulated entities that do not meet the intake velocity reductions or modify traveling screens with fish return systems should be subject to site specific BPJ determinations. TCEQ TCEQ Comments on Proposed 40 CFR Parts 122 and 125 Rule Page 4 of 5

5 strongly requests removing all effluent limitations, monitoring requirements, and related studies reports that are required in the proposed rules. 11. EPA should revise the proposed rules to reflect a threshold standard of 50 MGD - TCEQ is concerned with EPA s establishment of the 2 MGD threshold in the proposed rules. The vacated 316b rules established a flow threshold of 50 MGD for specific impingement and entrainment BTA standards. Lowering this threshold would increase the burden on permitting authorities with already strained resources. In man-made water bodies in Texas, there is little or no demonstrated evidence that there is a significant environmental consequence being avoided by these rules for a flow threshold of 50 MGD, much less for the smaller threshold of 2MGD. TCEQ requests establishing the threshold at the previous 50 MGD threshold and making a definitive determination in the rulemaking that intake structures below 50 MGD are not subject to the rules, rather than including a requirement for permitting authorities to establish BTA on a BPJ basis. 12. EPA should revise the rules to clarify the requirements for regulated entities to obtain cooling water by contract or other arrangements - TCEQ has concerns on the requirements established at 40 CFR (b) related to regulated entities obtaining cooling water by contract or other arrangement from an independent supplier. The regulated entity may not have the authority or ability to access the intake structure to perform the many requirements established in the proposed rules. In a situation where the independent supplier owns and operates the intake structure, this may require the third party to be a co-permittee on a TPDES permit. Additionally, since the permittee is ultimately responsible for compliance with 316(b), if the third-party supplier is unwilling to enter into a contract with the permittee to allow the permitting authority access to the CWIS, the permitting authority will have no meaningful way to ensure compliance with 316(b) requirements. TCEQ therefore requests that only facilities that own and operate their own CWIS should be subject to the rules and the rules should exempt cooling water intake structures that are owned and operated by independent suppliers from the 316b requirements. TCEQ Comments on Proposed 40 CFR Parts 122 and 125 Rule Page 5 of 5